9911796707
TMI Blog2005 (11) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion were first re moved to the depots of the assessee and sold from there to independent buyers. 2. At the time of clearance of each consignment to a depot, the appellant adopted the prevailing sale price at that depot as assessable value of the goods and duty was paid based on such valuation. 3. Subsequently, 13 show cause notices were issued raising differential duty demands (which have been confirmed under the impugned order) on the following two grounds: (i) Some consignments were sold from the depots at higher prices and duty was required to be paid on those consignments based on actual sale. (ii) The appellant incorrectly excluded Across-the-Board Rebate "ABR" from the assessable value at the time of valuing the goods for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. It is being pointed out that this decision of the Tribunal has been confirmed by the Apex Court. 7. We find merit in the contention of the appellant in regard to the relevant price for the purpose of valuation. It is clear from the terms of the section itself that valuation of a consignment under clearance is to be made on the basis of sale price prevailing on the date of removal at the place of removal (depot). This position remains clarified by the Board as well as decided by this Tribunal and confirmed by the Hon'ble Supreme Court in the case of Castrol India Ltd., and Lipi Data Systems Ltd. [2001(130) E.L.T. 91 (Tribunal)]. The decision of the Tribunal in the case of Brakes India Ltd., has no application to the present case, since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price, i.e. minus the discount, to Central Excise duty. In the present case, it is clear that the valuation adopted by the appellant was only more than the net realisation at the depot stage. That being the factual position, the finding of the Commissioner that the rebate was not passed on and that differential duty is payable by the appellant is not sustainable. 9. In view of what is stated above, we hold that the entire duty demand made under the impugned order is not sustainable. It is accordingly vacated. Since penalty cannot arise when there was no short levy, penalty is also set aside. The appeal is, thus, allowed with consequential relief, if any, to the appellant, after setting aside the impugned order. (Pronounced and dictated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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